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Petitioner: ABDUL WAHID And 3 Others--Appellants VS Respondent: The STATE
Court Name: Sindh High Court Judge(s): Imdad Ali H. Agha, Ghulam Rasool K. Shaikh Title: ABDUL WAHID And 3 Others--Appellants vs The STATE Case No.: Criminal Appeal No. 441 of 1970 and Confirmation Case No. 6 of 1971 Date of Judgment:1971-07-15 Reported As: 1972 PCr. L J 1144 Result: Order accordingly
JUDGMENT
JUDGMENT Ghulam Rasool K. Shaikh, J.--This is an appeal against the judgment of the learned Additional Sessions Judge, Sukkur convicting 1he appellants for an offence under section 302/34, P. P. C. and sentencing appellant Abdul Wahid to death while sentencing the remaining three to transportation for life. This case has also come up for confirmation of the death sentence under section 374, Cr. P. C. The incident had taken place on 27-7-69 at morning prayer time in the common courtyard of the houses of deceased Bhaji and others while the first report was lodged by Haji brother of the deceased at 8-30 a.m. at Khanpur Police Station situated at a distance of about 2 miles and it was recorded by Mr. Nabi Bux Head Constable. The parties lived in the same village and are Mehars by caste. Bhaji deceased was brother of Haji complainant and cousin of Allahwarayo and Pathan while Usman is caste-fellow of both the parties. So far the appellants are concerned they are related inter se. Appellants Abdul Wahid and Sharbat are brothers inter se while appellants Kaimdin and Sanaullah are their cousins. About 5 years before this incident Haji complainant and his cousin Kaloo were tried for the murder of Misri brother of Abdul Wahid and Sharbat appellants and they were sentenced to 3 years' R. I. The appellants were dissatisfied with this sentence and, therefore, they started demanding compensation but the complainant party refused on account of their conviction. So the appellants threatened to kili one of their men. The complainant and Kaloo were released from jail after serving out the sentence about l2 months before this incident. The compensation which was sought was in the form ol three women, and also expenses to be incurred on those marriages. However, it appears that one woman by name Mst. Mehran sister of the complainant was married to Khan
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Muhammad brother of appellant Abdul Wahid and Sharbat. Although this marriage was denied by the complainant but it was admitted by some ether witnesses. It appears that the appellants were not still satisfied with this marriage and they insisted that two more women be given to them in marriage. On 27-7-69 at morning prayer time Haji complainant, Bhaji deceased and Allahwarayo witness were sleeping in the common courtyard of their houses when suddenly the appellants appeared and inflicted injuries upon Bhaji. Appellants Abdul Wahid and Kaimdin had hatchets while Sanaullah and Sharbat were armed with guns in order to scare the inmates and others as well to meet any eventuality in case there was any resistence. When the deceased was attacked he raised cries and, therefore, Haji and Allahwarayo woke up and they found the appellants inflicting injuries with hatchets. Then all the four appellants escaped. While they were going out of the house they were seen by Pathan and Usman who were living closeby anck^vere attracted by the cries. Bhaji died instantaneously. The complainant went to the police station and lodged the first information report which was recorded by Nabi Bux Head Constable. The copy of the first report was sent to Mr. Muhammad Ghous, S. H. O. and he repaired to the scene of offence. The dead body of the Bhaji was lying on the cot and there was blood on the ground. The blood-stained earth was secured and sealed in presence of mashirs. There was blood on the pillow and cot. Mashirnama Exh. I6 was prepared. After preparing the inquest report Exh. 17 the dead / body was sent to the hospital through Wahidbux constable. After recording the statement of Allahwarayo search was made for the appellants but they were not available in the village. On 28th the statements of Pathan and Usman were recorded. On 30th appellant Wahid appeared at the police station and he was found wearing washed blood-stained shirt which was secured. The appellant was arrested and he led the police to his own house and produced a hatchet having some blood on the handle. It was sealed and Mashirnama Exh. 20 was prepared. The S. H. O. then went to house o Kaimdin appellant and arrested him. He also produced a hatchet and Mashirnama Exh. 21 was prepared. On 31st July 1969 both these appellants were sent to the Civil Judge and lst Class Magistrate, Mirpur Mathelo and their confessions were recorded. Their confessions read as under : Abdul Wahid "No Sir, no body or the police has given me any threat, promise or inducement. I am making this confession with my own free will. About four days back at dawn time, 1, Qaimuddin, Sanaullah, Sharbat started together from house and went to the well of Ali Nawaz. I and Qaimuddin went inside the house of deceased Bajhi and Sharbat and Sanaullah stood out. Deceased Bhaji was sleeping inside his house on a cot. I had a hatchet in my hand with which I gave two blows to Bajhi after which I and Qaimuddin came out and ran away along with Sharbat and Sanaullah. Sharbat and Sanaullah went to an unknown place on a lorry and we both went and hid in jungle. Yesterday, at about noon time I surrendered myself at the police station and also produced the hatchet used in the crime. I have killed Bajhi because four-five years ago Haji brother of Bajhi had killed my brother Misri and I have avenged that murder." Qaimuddin "No sir, no one including police has given me any inducement, threat or promise. I am making this confession with my own free will. About four days back, at dawn-midnight time, I, Abdul Wahid, Sanaullah, Sharbat went together to the house of Bajhi at the well of Ali Nawaz. Sharbat and Sanaullah stood outside in the lane and I and Abdul Wahid went inside the house of Bajhi. Bajhi was asleep on a cot. I had a hatchet in my hand. I stood at a distance of about 3/4 paces from the cot of Bajhi and Abdul Wahid struck-two blows with his hatchet to Bajhi. After this I and Abdul Wahid went and hid in the jungle. Sharbat and Sanaullah went to an unknown place on a lorry. Yesterday
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the police came and arrested me from my house. Abdul Wahid went to police by himself. Abdul Wahid is my cousin whose compensation was due from Bajhi, therefore, I had gone along with Abdul Wahid. I had taken out the hatchet from husk (Kati) in my house and had produced it before the police." The appellant had been allowed two hours for reflection by the learned Magistrate and thereafter their confessions were recorded. After recording the confessions the appellants were remanded to judicial custody. The learned Magistrate also appended the necessary certificates. On 4th August 1969 Sharbat appellant was arrested by S. H. O. Mirpur Mathelo and later he was taken into custody by Mr. Ghousbux. The appellant took the police to his house and producecLhis licensed gun, Mashirnama Exh. 22 was prepared. On 10th August, appellant Sanaullah surrendered himself at the police station and he was arrested. On 13th August 1969 the interim challan was sent and on 28th August 1969 the final challan was sent. The blood-stained articles were sent to the Chemical Analyser who detected human blood on the hatchet produced by appellant Abdul Wahid as well as on the earth. No blood was detected on the hatchet produced by appellant Qaimuddin. The appellants proclaimed their innocence and denied having killed Bajhi. It was admitted that Misri was murdered but it was pleaded that a compromise had been effected. It was further pleaded that Badal, Pandhi and Pirbux had committed the murder but they were let oif by the police by accepting Rs. 3,000 as illegal gratification and instead they were falsely implicated. The appellants Abdul Wahid and Qaimuddin also retracted from their confessions and stated that they had been maltreated by the Police and, therefore, they were forced to make the confessions. One of the appellants, namely, Sanaullah, pleaded that he was a teacher and on the day of the incident he had gone to Kandhkot to make purchases and stayed in one inn and in those days he was on vacation and was living in Bakhsha Pur. Haji Muhammad Ismail who was running the inn was examined to establish the presence of Sanaullah on that night in that inn. He also produced a register containing the entry Exh. 41 showing that the appellant had come there on 26th July 1969 at 8-30. Here it may be stated that it was not shown whether it was morning or evening although according to the witness the appellant had come in the evening and stayed for the night there. So according to him it was 8-30 p.m. None of the entries in the entire register show morning or evening but only time in figures is noted against all the entries. The prosecution examined Mr. Mian Abdul Halim Sadiq, Civil Judge and 1st Class Magistrate who had recorded the confessions, Haji complainant, Allahwarayo, Usman, Pathan, Ibrahim Mashir, Din Muhammad Mashir, Muhammad Moosa tapedar, Nabibux Head Constable and Mr. Ghousbux S. H. O. while the evidence of Dr. Ghulam Rasul recorded in the committal proceedings was brought on record. The fact that Bajhi was murdered has not been disputed. Apart from the ocular testimony it is borne out by the medical evidence. The medical officer had found the following injuries upon his person: "(1) An open incised wound about 8* x 3" x neck deep over the left side neck starting from the middle of the lower lip going towards the middle portion of the left clavicle. (2) An incised wound about 3* x 1|" x bone deep over the right promminence of the cheek. (3) An incised wound about 1' x Y x bone deep over the lateral 1/3 of the left clavicals. (4) A superficial incised wound about 3/4* x 1/4* x skin deep angular in shape over the left prominence of the cheek." According to the medical officer the injuries were ante-mortem and were caused by hatchet. The death was due to shock and haemorrhage as a result of the injuries. He was further of the opinion that the death must have been instantaneous and injury No. 1 was sufficient in the ordinary course
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of nature to cause death. The stomach was found empty. In order to consider the complicity of the appellants in this crime we would like to summarise the evidence. Taking up the ocular testimony there are two witnesses. The first witness is Haji. He is brother of the deceased and they lived together in the same house. The house of Allahwarayo was also situated within the same enclosure, with a common courtyard. Haji stated that he as well as Bajhi and Allahwarayo were sleeping in the courtyard when at morning prayer time he heard some noise and found the appellants proceeding straight to the cot of Bajhi. Appellant Abdul Wahid and Kaim had hatchets while Sanaullah and Sharbat had guns. Abdul Wahid and Kaim gave hatchet blows to Bajhi. Allahwarayo also got up on the cries. After inflicting the injuries the appellants took to heels and while they were still inside the witnesses Usman and Pathan arrived and they were challenged by the appellants, who then made good their escape. Bajhi was found dead. Pathan and Usman were informed about the incident and the names of the appellants were disclosed to them. He also described the motive for this murderous assault. He stated that he and Kaloo were challaned in the murder case and they were sentenced to undergo R. I. for. 3 years. They were released after serving out the sentences in the year 1967. The appellants demanded compensation from him and Bajhi but they declined as the compensation was too large to be managed. He further stated that Bajhi was his younger brother and the main earning member of the family. In the cross-examination he admitted that he had not stated either in his police statement or in the committal proceedings that he had disclosed the names of the appellants to Usman and Pathan, nor they had disclosed their names to him. He further stated that the appellant wanted compensation in the form of 3 women and expenses for the marriage but they could not comply with their demand. In the examination-in-chief he had stated that he was awake when he had heard the noise but in the first report to which he was confronted he had stated that he woke up on the noise. He further stated in the cross-examination that the police had arrested Pandhi, Badal and Pirbux as suspects in this case. With regard to the arrest of the appellants he stated that appellants Abdul Wahid and Kaimdin were arrested by the Police on the day of the incident. He denied that after the release from jail they had paid any compensation to the * appellants. He also denied that Mst. Mehran daughter of his brother Loung was married to Khan Muhammad brother of the appellant Abdul Wahid. He also denied that Khan Muhammad had any wife by name of Mst. Mehran. Kandhkot was 40 miles from his village. The other witness Allahwarayo stated that at morning prayer time he was giving fodder to his cattle when he heard the cries from the house of the complainant and on going there he found Sanaullah and Sharbat appellants having guns while appellants Abdul Wahid and Kaimdin had hatchets. His house was situated at a distance of about 15/16 paces from the house of the complainant within the same courtyard. He further stated that the appellants with hatchets gave blows to Bajhi but on account of fear they stood aside. They raised cries which attracted Usman and Pathan and they had seen the appellants running away. Bajhi was found dead. He also talked of the motive as stated by Haji. In the cross-examination he was confronted with his statements recorded in the police as well as committal proceedings wherein he had not stated that he was giving fodder to the cattle but he had said that he woke up on the cries of the complainant. He could not say what compensation was demanded by the appellants. According to him the house of Usman was at a distance of 20/25 paces while the house of Pathan was at a distance of 40/50 paces. He admitted that Mst. Mehran daughter of Loung was married to Khan Muhammad brother of appellant Abdul Wahid, but he could not say how much time before the incident she was married. Then there is the evidence of Usman and Pathan, who were attracted by the cries. Usman stated that he was sleeping in his house which was situated near the house of the complainant and on
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hearing the cries coming from the house of the complainant he rushed there. Pathan also arrived. They saw the present appellants coming out of the house. Appellant Sharbat and Sanaullah had guns while appellants Abdul Wahid and Kaim had hatchets. They made no etforts to capture the appellants as they were threatened. They found Bajhi lying dead. In cross- examination he stated that other persons arrived after the appellants had escaped. They had seen the appellants while they were at the side of Bajhi near the cot. He had admitted in the committal proceedings that about 2 years prior to this incident the marriage of one Mehran and Kharso had taken place. Pathan had stated that his house was situated at a distance of 20/25 paces from the house of the complainant. On hearing the cries he went there. On the way Usman joined him. On going there they found appellants Abdul Wahid and Kaim giving hatchet blows to Bajhi who was sleeping on the cot. Haji and Allahwarayo were raising cries. On going inside the house he saw the appellants at a distance of 8/10 paces. He was challenged by Sharbat and Sanaullah appellants. They had declared that they had avenged the murder of Misri. Thereafter they ran away. Bajhi was found dead. They were informed that Abdul Wahid and Kaim appellants had given blows to Bajhi while appellants Sharbat and Sanaullah stood there. In cross-examination, however, he stated that it was not true that they had seen the appellants giving blows to the deceased. He further stated that the house of Usman was nearer than his house to the house the complainant but he overtook Usman, as he was fast in running and was ahead of Usman. However, they reached the house of the complainant together. He denied that the complainant had paid any compensation for the murder of Misri to the appellants. The appellants had demanded compensation but the complainant party refused to pay. He could not say when Mst. Mehran was given in marriage to Khano by the complainant party. According to him it was not true that the marriage of Mst. Mehran was performed after the complainant and Kaloo were released from Jail. He had not attended the marriage. He had omitted to mention in his statement recorded under section 164, Cr. P. C. whether any of the appellants had a gun. He further stated that there were 5/7 cots lying in the courtyard of the house of the complainant while some other cots were at a little distance. Then there is the evidence of the remaining witnesses. Ibrahim is the mashir of the scene of offence. He had found the dead body lying on the cot and there was blood. Mashirnama Exh. I6 was prepared. In the cross-examination he denied that he was related to the complainant although he admitted it in the committal proceedings. Din Muhammad is the mashir for the arrest of appellant Abdul Wahid. He stated that the police had secured the shirt from the person of the appellant and it appeared washed although there were some very faint spots of blood. Mashirnama Exh. 18 was prepared. The appellant then took them to his own house and produced a hatchet from the fence. There was some blood on the handle of the hatchet. Mashirnama Exh. 20 was prepared. The hatchet Article B was shown to him in Court and he stated that it was the same which was produced by the appellant. Kaimdin appellant was also arrested on the same day and he produced a hatchet from his house from the heap of chaffs but no blood was found on it. Mashirnama Exh. 21 was prepared. After 4/5 days he saw a gun borne on the licence of appellant Sharbat lying at the police station and Mashirnama Exh. 22 was prepared. In the cross-examination he stated that he could not say who had produced the gun and the licence. He denied having stated in the committal proceedings that he had not seen blood on the blade of the hatchet and the police said that there was blood on it. He also denied that the police had maltreated the appellants Kaimdin and Abdul Wahid in order to compel them to produce the hatchets, although he had admitted this fact in the committal proceedings and he was confronted with that statement. His village was situated at a distance of about 2$ miles from the police station, although he stated in the committal proceedings that his village was situated at a distance of 4/5 miles.
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He further admitted that he had acted as mashir in two or three cases prior to this incident. In the committal proceedings he had stated that he had acted as mashir in 5/10 cases. Nabibux is the Head Constable who recorded the first report. There is nothing else material in his evidence. Then there is the evidence of Mr. Ghousbux S. H. O. who had held the entire investigation. With regard to his evidence it is suffice to mention that according to him one washed bloodstained shirt was secured from the person of appellant Abdul Wahid who was arrested on 30th July 1969 and he also produced hatchet having blood on the handle from his house. The hatchet was sealed. Kaimdin was also arrested on the same day and he too produced a hatchet but there was no blood. On 31st July 1969 he had forwarded the appellants Abdul Wahid and Kaimdin to the Civil Judge and 1st Class Magistrate, Mirpur Mathelo for getting their confessions recorded. On 2-8-1969 he got the statements of Allahwarayo, Usman and Pathan recorded under section 164, Cr. P. C. He further stated that appellant Sharbat was arrested by another S. H. O. on 4-8-69. He interrogated him and he produced his licensed gun from his house. On 10th August 1969 appellant Sanaullah surrendered himself at the police station and he was arrested, ln the cross- examination he denied that he had either arrested appellant Kaimdin and Abdul Wahid on the day of the incident or he had maltreated them. He stated that the appellants were not available in their houses on that day. He also denied having arrested Pandhi, Badal and Pirbux as suspects. Abdul Wahid appellant was arrested at about 2 p.m. He denied having sent for any female member of the appellants at the police station. From the resume of the evidence it is clear that the witnesses who had actually witnessed the murderous assault on the deceased are Haji and Allahwarayo. According to their evidence appellants Abdul Wahid and Kaimdin inflicted injuries by hatchets while the other two armed with guns waited there. All the four had gone together to perpetrate the crime. Their evidence was supported by the evidence of Pathan and Osman who were attracted by the cries and had seen all the four appellants in the courtyard where the victim was killed and then they were found leaving the house. On account of threats and fear they could not muster up courage to capture any of the appellants. The evidence of the aforesaid witnesses was accepted by the learned Additional Sessions Judge. It was pertinently observed by the Supreme Court in the case of Allahditta v. The State (1), "one principle is that an appellate Court should always give a full measure of weight to the opinion formed by a Judge of the first instance regarding the character and the credibility of a witness who has been examined at length before him in relation to the facts." Apart from this principle we have carefully examined the entire evidence and we fully confirm the view taken [VOL. V by him. The learned counsel for the appellant did not succeed in persuading us to hold a contrary view. He mainly relied upon the relationship of the witnesses and certain discrepancies. By now it is fully settled that mere relationship is no ground to hold that the evidence is of partisan character or it should be rejected. It is not shown that the witnesses were on terms of serious enmity with the appellant in order to cast cloud on their testimony. On the contrary the appellants nursed a grouse against the complainant's party on account of the previous murder and their demand for compensation was not fully met with. In order to meet this it was urged by the learned counsel that the appellants had already obtained the compensation in the form of the marriage of the niece of the deceased with the brother of Abdul Wahid and Sharbat appellants a year or two before this incident and therefore, that chapter was closed long ago. May it be so, but this on the contrary recoils against the appellants as by the previous settlement the complainant's party had no ill-will or malice against the appellants in order to falsely implicate them. Even the learned counsel could not point out any motive for false implication. Indeed, the absence of the proof of any such notice
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may not be sufficient to hold that what the witnesses have stated is true but all the same it is one of the factors to be taken into consideration to judge the veracity of a witness. In other words it depends upon the circumstances of each case which provide the guideline to assess the evidence. The circumstances in the present case do not present any inherent improbability in what the witnesses have deposed. The murder was committed in the courtyard common to the houses of the complainant and Allahwarayo. This fact has not been disputed. This spot evidently being the scene of murder, Haji and Allahwarayo are the natural witnesses. Furthermore the incident having taken place at morning prayer time their presence at that time cannot at all be doubted. So it is but natural that they must have seen what had happened before their eyes. This is a sufficient guarantee to establish the truth of their claim. Equally the arrival of Pathan and Usman is not open to any exception. They both reached the spot simultaneously and found the appellants escaping after inflicting the injuries. The house of Usman was adjacent to the house of the deceased while the house of Pathan was situated hardly at a distance of 20 or 25 paces. Thus they too are natural witnesses and lived within a distance from where the cries were audible and, therefore, they could be attracted by the cries and reach the spot before the assailants could successfully make good their escape. It may be noted that the hedge round the scene of offence was only 3 or 3| feet high and, was fully open to view to a person who was still outside. Pathan is of course cousin of the deceased but no relationship of any kind exists between Usman and the deceased except that they were caste-fellows but Usman is also caste-fellow of the appellants. He had no hostility for the…
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